Bombay High Court
Hanmant Pundlikrao Biradar vs The State Of Maharashtra Through Its ... on 3 May, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2024:BHC-AUG:9712-DB
1103.24wp
(1)
Reportable Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1103 OF 2024
Hanmant s/o Pundlikrao Biradar,
Age: 59 years, Occupation : retired,
R/o At Ajani, Post Togari,
Taluka-Deoni, District-Latur-413519 ....PETITIONER
VERSUS
1) The State of Maharashtra,
Through it's Secretary,
Other Backward Class Bahujan
Kalayan Department, Mantralaya,
Mumbai-32
2) The Desk Officer,
Other Backward Class Bahujan
Kalayan Department, Mantralaya,
Mumbai-32
3) The Managing Director,
Maharashtra State Other Backward
Class Finance and Development
Corporation, Administration Building,
4th Floor, Ramkrushna Chemburkar Road,
Chembur, Mumbai 400071 ....RESPONDENTS
....
Mr S. S. Dambe, Advocate for Petitioner;
Mr S. B. Narwade, A.G.P. for Respondent Nos.1 and 2
Mr A. A. Yadkikar, Advocate for Respondent No.3
CORAM : RAVINDRA V. GHUGE
AND
R. M. JOSHI, JJ.
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(2)
DATE : 3rd May, 2024
ORAL JUDGMENT : (PER : Ravindra V. Ghuge, J.)
1. Rule. Rule made returnable forthwith and heard
finally by consent of the respective sides.
2. The Petitioner has put forth prayer clauses (B), (C)
and (D), which read as under :-
"B. By issuing writ of mandamus or order or
directions and order to direct the respondents to pay the
remaining amount of gratuity to the petitioner as per the
Payment of Gratuity (Amended) Act 2018 of Rs.16.5 lacks
with interest within stipulated period.
C. By issuing writ of mandamus or order or
directions the respondents may kindly be directed to decide
the representation 20.6.2023 filed by the petitioner and
direct to pay the remaining amount of gratuity with interest
within stipulated time period.
D. By issuing writ of mandamus or order or
directions to the respondent no.1 direct to grant sanction to
the proposal dated 8.1.2020 according to the ordinance
dated 28.3.2018 in Gratuity Act 1972 regarding approving
the maximum amount of Gratuity Rs.20 lacks to the officers
and employees of OBC Corporation State of Maharashtra."
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3. We have considered the strenuous submissions of the
learned Advocates for the respective sides. With their assistance,
we have considered the Petition paper book and the affidavits-in-
reply filed on behalf of the State, dated 26/04/2024 and on behalf
of Respondent No.3, dated 26/04/2024.
4. The undisputed factors are as under :-
(a) The Petitioner joined service with the Maharashtra
Electronic Corporation Limited, Chhatrapati Sambhajinagar
(for short 'Meltron') on 07/03/1986 as a 'Technical
Assistant' and was subsequently promoted as an 'Engineer'.
(b) Since Meltron was closed down on 28/11/2023, the
Petitioner was redeployed as a 'District Manager' along
with two other persons, with Respondent No.3/Maharashtra
State Other Backward Class Finance and Development
Corporation Ltd., Mumbai, on 09/12/2003.
(c) Respondent No.3, was subsequently renamed as 'OBC
Corporation'.
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(d) By an office order dated 24/12/2003, the Petitioner's
pay fixation was done by Respondent No.3 and he was
placed in the pay-scale to Rs.2000-60-2300-EB-75-3200-
100-3500, as per Rule 11 of the Maharashtra Civil Services
(Pay) Rule, 1981.
(e) By a communication dated 15/12/2003, by the Chief
Executive Officer of Meltron, the Petitioner was informed
that, his entire gratuity payable for his service in Meltron for
an amount of Rs.1,02,621/-, has been transferred to the
OBC Corporation since the Petitioner has been absorbed in
the OBC Corporation.
(f) The State of Maharashtra issued the Government
Resolution dated 24/08/2005, fixing the terms and
conditions of the services of the Officers and the
Employees, who were absorbed from the other Corporation.
(g) In Clause 5 below Annexure B to the said
Government Resolution, it was specifically mentioned that
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the employees would be entitled for the gratuity, as is
prescribed under the Payment of Gratuity Act, 1972.
(h) The Petitioner superannuated as the 'District
Manager', from the OBC Corporation, on 30/11/2022.
(i) The Petitioner has received gratuity amount of only
Rs.3,50,000/- vide cheque No.834176, dated 01/12/2022.
(j) The ceiling on the gratuity amount prescribed under
the Payment of Gratuity Act was raised to Rs.20,00,000/-
from Rs.10,00,000/-, by the Notification dated 28/03/2018,
vide which, an amendment was made to Section 4(3) of the
Payment of Gratuity Act, 1972.
(k) The State Government had issued a Notification dated
04/06/2012, stating therein that, those employees who were
absorbed from such closed down Corporations, by way of
redeployment in any other entity of the Government, they
would be entitled for all the benefits after their absorption
by calculating their gratuity amount, if they have not been
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granted benefits of service after the closing down of the
erstwhile industry.
5. The learned A.G.P. strenuously opposed this Writ
Petition on the basis of the affidavit-in-reply. It is contended that,
the Petitioner was one of the employees from a defunct public
undertaking. His absorption in the OBC Corporation should be
considered as a new appointment and such employees are not
entitled for any benefit for their previous service rendered with
the defunct public undertaking. It is further stated that, those
employees, who have not taken any admissible benefit from the
defunct public undertaking, on their reemployment in any other
public undertaking, would get the benefit of continued service for
the purpose of gratuity in the light of the Circular issued by the
Finance Department, dated 04/06/2012.
6. It is conceded in paragraph 6 of the affidavit on behalf
of Respondent No.1 that the Petitioner has not availed any benefit
from his previous public undertaking and he has been
re-appointed in the OBC Corporation and service rendered by him
in the previous public undertaking, would not be considered for
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such benefits, except gratuity. In paragraph 7 of the said affidavit,
a statement is made that the office orders dated 09/12/2003 and
24/04/2003, issued by the OBC Corporation, by which, his earlier
pay has been protected, is contrary to the Government Resolutions
dated 16/06/2003 and 04/06/2012.
7. It is then canvassed in paragraph 8 that, the Finance
Department has issued a Circular dated 14/11/2014, instructing
the public undertakings that the maximum gratuity limit, which
was fixed at 10,00,000/-, should be lowered to the maximum
gratuity/ceiling of Rs.7,50,000/-, unless there are statutory
provisions or Court orders applicable.
8. The learned Advocate representing Respondent No.3/
OBC Corporation, relies on the affidavit-in-reply, dated
26/04/2024 and submits that, the pay-scale granted to the
Petitioner as a 'District Manager', has been protected. The
gratuity calculated with regard to the Petitioner as per the
provisions of the Payment of Gratuity Act, 1972 is computed at
Rs.26,83,040.71, as on the date of payment of gratuity, which is
01/01/2023. He refers to a communication dated 08/01/2020,
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addressed by the Managing Director of the OBC Corporation to
the Principal Secretary, Other Backward Classes Social and
Educational Backward Classes, Scheduled Tribes, De-notified
Tribes, Nomadic and Special Backward Classes Welfare
Department, indicating that the OBC Corporation has created a
corpus for payment of gratuity to the retired employees, upto the
ceiling of Rs. 20,00,000/- and the said amount is kept in the Fixed
Deposit Receipt with the Nationalized Bank.
9. Having considered the contentions, pleadings and
averments of the litigating parties before us, we are of the view
that sometimes, the State Government opposes a Petition only for
the sake of opposition. Even the State has admitted that the
Petitioner has not availed of his service benefits and gratuity
amount, when he was working for more than 17 years with
Meltron. It is also conceded that the Chief Executive Officer of
Meltron had transferred the entire gratuity amount payable to the
Petitioner, to the OBC Corporation with the communication/letter,
dated 15/12/2003 for an amount of Rs.1,02,621/-, as was payable
in December 2003. It cannot be ignored that the Payment of
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Gratuity Act prescribes 10% interest on the unpaid amounts
towards gratuity.
10. Considering the above referred documents and the
pleadings of the State Government, it is conceded that the
Petitioner was redeployed with the OBC Corporation.
Redeployment indicates continuity in service, unless there is a
break in service specifically introduced. Even if such break is
introduced, such a break would gain significance only if the
earlier portion of the service of the Petitioner with Meltron, was
concluded with payment of all legal dues and retirement benefits
to the Petitioner. The fact that the gratuity amount was deposited
with the OBC Corporation and the Petitioner's service was
absorbed by protecting his pay-scale, leaves no room for any
debate that, continuity in service for 36 years and 8 months odd,
will have to be granted to the Petitioner.
11. In this backdrop, we are of the view that the
calculation of the gratuity amount made by the OBC Corporation,
dated 29/11/2022 for an amount of Rs.26,83,040.71, prior to the
superannuation of the Petitioner, is neither disputed nor
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controverted, much less, denied. Nevertheless, Section 4(3),
along with the amendment of 2018 adverted to herein above,
casts a ceiling of Rs.20,00,000/- on payment of gratuity and the
Petitioner does not dispute this.
12. In view of the above, this Writ Petition is allowed.
Deducting the amount of Rs.3,50,000/- from the amount of
Rs.20,00,000/-, which was paid by the OBC Corporation to the
Petitioner after his superannuation, the remaining amount of
Rs.16,50,000/- along with the statutory interest @10% p.a. to be
calculated from 01/01/2023 on-wards, would be paid by the OBC
Corporation to the Petitioner, on or before 30/06/2024.
13. Rule is made absolute in the above terms.
(R. M. JOSHI, J.) (RAVINDRA V. GHUGE, J.)
sjk
